Authorizes OEQC to review and override the determination of an agency's determination of whether its proposed action requires an environmental impact statement; requires an environmental assessment for proposed wastewater facilities, waste-to-energy facilities, landfills, oil refineries, and power generating facilities. (SB2505 HD2)
TWENTY-FIRST LEGISLATURE, 2002
STATE OF HAWAII
A BILL FOR AN ACT
relating to environmental impact statements.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that environmental assessments and impact statements prepared under chapter 343, Hawaii Revised Statutes, disclose the environmental, social, cultural, and economic effects of future development to the public and decision-makers and provide an excellent basis for making informed decisions on projects.
Loopholes in the present environmental review process allow the construction of wastewater facilities, waste-to-energy facilities, landfills, oil refineries, or power-generating facilities to proceed without environmental assessments or impact statements. Requiring environmental assessment procedures for those projects under chapter 343, Hawaii Revised Statutes, would ensure that decision-makers have the proper information about environmental, social, cultural, and economic consequences before approving the facilities.
Under the present environmental impact review process of the State, minor projects with minimal effects may be declared exempt by the reviewing agencies. Therefore, small projects will not be affected by this Act. The exempt classes of actions are listed in section 11-200-8, Hawaii Administrative Rules (Department of Health).
The legislature also finds that the present environmental review process allows the proposing agency to determine whether its own project may cause a significant impact. Because the proposing agency and the determining agency are the same, a conflict of interest exists. This Act reduces the conflict of interest by authorizing the office of environmental quality control to review the agency's determination, consult the agency, and make a final determination.
SECTION 2. Section 343-2, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:
""Power-generating facility" means a new electricity-generating facility or an expansion in generating capacity of an existing electricity-generating facility where the incremental electrical output rating of the new equipment exceeds 5.0 megawatts."
SECTION 3. Section 343-5, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:
"(a) Except as otherwise provided, an environmental assessment shall be required for actions [
(1) Propose the use of state or county lands or the use of state or county funds, other than funds to be used for feasibility or planning studies for possible future programs or projects [
which] that the agency has not approved, adopted, or funded, or funds to be used for the acquisition of unimproved real property; provided that the agency shall consider environmental factors and available alternatives in its feasibility or planning studies;
(2) Propose any use within any land classified as a conservation district by the state land use commission under chapter 205;
(3) Propose any use within [
the] a shoreline area as defined in section 205A-41;
(4) Propose any use within any historic site as designated in the National Register or Hawaii Register, as provided for in the Historic Preservation Act of 1966, Public Law 89-665, or chapter 6E;
(5) Propose any use within the Waikiki area of Oahu, the boundaries of which are delineated in the land use ordinance as amended, establishing the "Waikiki Special District";
(6) Propose any amendments to existing county general plans where such amendment would result in designations other than agriculture, conservation, or preservation, except actions proposing any new county general plan or amendments to any existing county general plan initiated by a county;
(7) Propose any reclassification of any land classified as a conservation district by the state land use commission under chapter 205; [
(8)[ ]] Propose the construction of new[ ,] or the expansion or modification of existing helicopter facilities within the State, which, by way of their activities, may affect any land classified as a conservation district by the state land use commission under chapter 205; [ the] a shoreline area as defined in section 205A-41; or[ ,] any historic site as designated in the National Register or Hawaii Register, as provided for in the Historic Preservation Act of 1966, Public Law 89-665, or chapter 6E[ ;], or, until the statewide historic places inventory is completed, any historic site found by a field reconnaissance of the area affected by the helicopter facility and which is under consideration for placement on the National Register or the Hawaii Register of Historic Places[ .]; and
(9) Propose any wastewater facility, waste-to-energy facility, landfill, oil refinery, or power-generating facility.
(b) Whenever an agency proposes an action in subsection (a), other than feasibility or planning studies for possible future programs or projects [
which] that the agency has not approved, adopted, or funded, or other than the use of state or county funds for the acquisition of unimproved real property, which is not a specific type of action declared exempt under section 343-6, that agency shall prepare an environmental assessment for such action at the earliest practicable time to determine whether an environmental impact statement shall be required. For environmental assessments for which a finding of no significant impact is anticipated, a draft environmental assessment shall be made available for public review and comment for a period of thirty days. The office shall inform the public of the availability of the draft environmental assessment for public review and comments pursuant to section 343-3. The agency shall respond in writing to comments received during the review and prepare a final environmental assessment to determine whether an environmental impact statement shall be required. A statement shall be required if the agency finds that the proposed action may have a significant effect on the environment. The agency shall file notice of such determination with the office [ which, in turn, shall publish the agency's]. The office may review the agency's determination, consult the agency, and make a final determination. The office shall publish the final determination for the public's information pursuant to section 343-3. The draft and final statements, if required, shall be prepared by the agency and submitted to the office. The draft statement shall be made available for public review and comment through the office for a period of forty-five days. The office shall inform the public of the availability of the draft statement for public review and comments pursuant to section 343-3. The agency shall respond in writing to comments received during the review and prepare a final statement. The office, when requested by the agency, may make a recommendation as to the acceptability of the final statement. The final authority to accept a final statement shall rest with:
(1) The governor, or the governor's authorized representative, whenever an action proposes the use of state lands or the use of state funds or whenever a state agency proposes an action within the categories in subsection (a); or
(2) The mayor, or the mayor's authorized representative, of the respective county whenever an action proposes only the use of county lands or county funds.
Acceptance of a required final statement shall be a condition precedent to implementation of the proposed action. Upon acceptance or nonacceptance of the final statement, the governor or mayor, or the governor's or mayor's authorized representative, shall file notice of such determination with the office. The office, in turn, shall publish the determination of acceptance or nonacceptance pursuant to section 343-3."
SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 6. This Act shall take effect on June 30, 2020.